A few months ago, I posted an entry about the Supreme Court of Wisconsin becoming the latest court to find that the admission of testimonial dying declarations does not violate the Confrontation Clause. At the time, I noted that "[s]ince Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause." And the recent opinion of the Supreme Court of New York, Appellate Division, Second Department, in People v. Clay, 2011 WL 2570701 (N.Y.A.D. 2 Dept. 2011), doesn't change things.

In Clay,

Igol Isaacs was shot on a street in Brooklyn. Police Captain Brian McGee responded to a radio call seeking assistance at the scene of the shooting. When McGee arrived at that location, there were other officers and a police van already present. McGee observed Isaacs lying face-up on the sidewalk, and a police officer with him. Without speaking with the other officers, McGee approached Isaacs, who was gasping for air. McGee knelt down beside him and asked "Who shot you?" Receiving no response, McGee then stated to Isaacs: "I don't think you're going to make it. Who shot you?" The victim responded, saying what McGee heard as "Todd shot me." When McGee sought to confirm "Todd shot you," the victim stated "[N]o. No. Tom shot me. Tom. Tom." McGee "kept asking" Isaacs "Tom, who?" but, according to McGee, it was difficult for Isaacs to breathe and he was unable to speak any further.

Thomas Clay was subsequently charged with second-degree murder in connection with the death of Isaacs, and McGee testified to Isaacs' statements at trial.

After he was convicted, Clay appealed, claiming, inter alia, that the admission of Isaacs' statements violated the Confrontation Clause because they were testimonial and Isaacs did not testify at trial. The Second Department agreed with Isaacs that Clay's statements were testimonial because, inter alia,

from Isaacs's point of view, his statement "Tom shot me" could not reasonably be viewed as "proclaim[ing] an emergency and seek[ing] help;" and

while McGee's inquiry was made at the crime scene, shortly after the shooting had occurred, the totality of the surrounding circumstances objectively indicate that McGee's primary purpose was "to nail down the truth about past criminal events....He intended to, and did, elicit statements that "do precisely what a witness does on direct examination"—"'accuses' a perpetrator of a crime...."

The Second Department then noted, though, that in Crawford the Supreme Court pointed out that "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are...." The Second Department thus concluded that this

dicta contained in Crawford is strongly suggestive of the Supreme Court's position on this issue, particularly in light of the decision's fundamental reasoning that "the 'right...to be confronted with the witnesses against him,' is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding...."

Accordingly, the Second Department "join[ed] all of the other state courts that have decided this question, and conclude[d] that 'the Sixth Amendment incorporates an exception for testimonial dying declarations....'" The court thus found no problem with the admission of Isaacs' statements because they clearly qualified as dying declarations:

Isaacs was shot six times. Three of the bullets entered Isaacs's abdomen, the right side of his back, and the left side of his back, respectively, perforated his kidney, liver, and small and large intestines, fractured two vertabrae and the spinal cord, and passed into his chest cavity, perforating the middle and lower lobes of the right lung. Isaacs's condition appeared to be declining, rather than improving, at the time the declarations were made, as McGee testified that Isaacs was struggling to breathe and once he told McGee that "Tom" shot him, was unable to speak any further in response to McGee's subsequent inquiries. Further, while there were no medical personnel on the scene at that time who could have expressed an opinion to Isaacs as to his condition, McGee informed Isaacs that he did not think he would live. There is also no indication that Isaacs, who was shot at relatively close range, based his identification of the shooter on suspicion or conjecture. Under these circumstances, Isaacs's statement "Tom shot me" was properly admitted as a dying declaration....